The joinder of a
resident defendant will not necessarily preclude application of the forum non
conveniens doctrine to other defendants whose ties to California are minimal,
the Court of Appeal for this district ruled Friday.

Div. Eight
affirmed the dismissal of claims against several defendants in products
litigation claims involving Infuse, a medical device approved for use in a
limited class of spinal fusion surgeries. Thirty-seven patients who had Infuse
implanted for off-label uses alleged they suffered neck and back pain and other
ill effects as a result.

The action was
filed in Los Angeles Superior Court. Only one of the plaintiffs lives in
California, and that plaintiff lives in Sacramento County.

The defendants
include Medtronic, Inc. and affiliated companies—the manufacturers and sellers
of Infuse—as well as Wyeth, Inc. and affiliates, which allegedly sold Medtronic
a genetically engineered protein that is part of the device, and Dr. Gary K. Michelson,
alleged to be one of the inventors of a metal cage used to house the protein.

Michelson is a
resident of Los Angeles County. The defendants alleged in their forum non
conveniens motions that Michelson wasn’t involved in marketing or manufacturing
Infuse, and said his ties to the state should not be considered in concluding
whether to grant the motion.

They further
argued that the issues as to each plaintiff were unique, and that each
plaintiff should therefore be required to litigate in his home state, or in the
California plaintiff’s case, in his home county.

Superior Court
Judge Terry A. Green agreed and dismissed the action as to all defendants,
except that the Sacramento plaintiff’s claims were transferred to the
Sacramento Superior Court.

Justice Laurence
Rubin, writing for the Court of Appeal, said the trial judge was correct as to
all defendants except Michelson.

The plaintiffs,
the justice noted, did not argue on appeal that Michelson was more than a
nominal defendant, so “this case squarely presents the issue of whether the
existence of a nominal defendant, over whom jurisdiction cannot be established
in the proposed alternative forum, can defeat a forum non conveniens motion
which should otherwise be granted.”

The answer, he
said, is no, citing federal precedent.

On the other
hand, Rubin wrote, federal courts have divided on whether the “nominal
defendant” exception to the rule weighing against dismissal if the selected
forum is convenient to at least one defendant requires dismissal of the nominal
defendant along with the others. The “only reasonable” answer, the justice
said, is that the claims against the nominal defendant should be severed and
tried in California.

“Were it
otherwise, the nominal defendant – who may, in fact, be liable – would escape
liability on nothing more than the moving defendant’s showing that he is at
best only peripherally liable, but is not subject to suit in a more convenient
forum for pursuit of the main action,” Rubin said.